Owen v Brown

An appellate court should be slow to interfere with a trial judge’s assessment of competing expert evidence on nursing care and its cost where the judge has carefully analysed the evidence and given clear reasons for preferring one opinion. Direct evidence from a care provider is not indispensable if the evidence available enables the judge to reach clear conclusions about the appropriate level and market cost of care. An award will stand where the judge has adequately and fully dealt with the issues raised.

The claimant suffered catastrophic injuries when his motorcycle was struck by a turning tractor. The High Court, before Silber J on 27 May 2001, awarded total damages of £3,915,235.70. The only challenged element was the award for nursing care.

Two care experts disagreed about the level of care required and whether the cost should be calculated by hourly or weekly rates. The defendant’s application focused on the absence of evidence from the care company whose charges supported the hourly rates. The central issue was whether the judge was entitled to reach clear conclusions on the appropriate care rates from the evidence before him.

The application was refused unanimously. Lord Justice Latham gave the principal judgment, and Lord Justice Simon Brown agreed.

1. The dispute concerned only the nursing-care award. The trial judge had preferred Mrs Sargent’s evidence over Mrs Bingham’s after a careful analysis of the competing assessments.
2. The trial judge gave seven reasons for his preference. They included his assessment of the claimant’s actual care needs, the evidence that the proposed rates had been charged to more than 100 clients, the substantial proportion of those clients funded by Health and Social Services, the claimant’s actual bedtime, the need for daytime transfers, the experts’ differing experience, and the confidence inspired by their evidence.
3. The defendant argued that the care company’s brochure referred to live-in care at a daily rate, but that the company had not given evidence explaining the level of care included in that rate. The Court of Appeal held that the trial judge had nevertheless been able to reach clear conclusions on the appropriateness and reasonableness of hourly rates. Those conclusions were supported by Mrs Sargent’s evidence and by the judge’s findings about the claimant’s particular needs.
4. The judge had adequately and fully dealt with the issues raised. His judgment could not be impugned, and the application was refused.

Lord Justice Simon Brown added that he regarded the judgment as exceptionally thorough.

• Court of Appeal (Civil Division): On 29 July 2002, the court refused the defendant’s application concerning the nursing-care element of the damages award. [2002] EWCA Civ 1197
• High Court, Queen’s Bench Division: Silber J awarded the claimant total damages of £3,915,235.70 on 27 May 2001, including the challenged nursing-care award.